Critical Legal Histories and Law's (In)determinancy

Abstract

Over the years, I have had the delight, adventure, and nourishment of having Bob Gordon as friend, colleague, and co-teacher. But for this Reflection, I was moved to excavate Gordon's role in my life before I ever met him, in those years when a first encounter with Critical Legal Histories helped me find my voice as a law student in New Haven in the 1980s. As I have pulled on the string of these memories, what strikes me is how Critical Legal Histories enabled some of my first work on the modernization of marital status law, even as I argued with the article's core claims about law's indeterminacy. Gordon asserted that law structured social life at the deepest levels; my work on marriage law illustrated how this was so. At the same time, my work on marriage law led me to resist Gordon's claim that law was indeterminate. The marriage cases demonstrated the many ways that inequalities in the law's interpretation and enforcement structured social life. Yet in the end my encounter with the indeterminacy thesis would shape the ways I came to understand law's role in enforcing inequality. My formative encounters with Critical Legal Histories raised questions about the plural ways histories can be critical.